Tensions boiled over this month when angry mobs ransacked two lobster pounds holding the Indigenous fishers’ catch, pelting the buildings with rocks, barricading some fishers inside and dumping their lobster. One of the pounds was later burned to the ground in a fire that police deemed “suspicious.”
The attacks, described by Indigenous Services Minister Marc Miller as “disgusting, unacceptable and racist,” are a new flare-up in a conflict that stretches back decades.
The battle over the right of Mi’kmaq people to fish has frayed ties in the province at the heart of Canada’s lucrative lobster industry and revived questions about the government’s commitment to reconciling with Indigenous people.
The latest fracas touched off when the Sipekne’katik, a Mi’kmaq band, set up a “moderate livelihood” fishery in the village of Saulnierville, Nova Scotia, outside the closed fishing season — asserting a right affirmed by courts and centuries-old treaties. Sack issued the licenses himself.
“What we were anticipating was to develop a better life going ahead for our people,” he told The Washington Post. “We knew there would be some resistance. But not to this magnitude.”
Spokesmen for non-Indigenous commercial fishers have condemned the violence. But they say the scale of the Sipekne’katik fishery and its operation outside the federally regulated season, which in southwestern Nova Scotia runs from late November to late May, threatens lobster conservation and the fishers’ livelihood.
“We’ve always believed that for the sustainability of the stock and the proper running of a fishery, the Department of Fisheries and Oceans must be the only regulator,” said Bernie Berry, president of the Coldwater Lobster Association, which represents 200 local fishers. “There [should be] only one season and only one set of rules … DFO is abdicating its responsibility.”
Analysts say the evidence for the commercial fishers’ claims about conservation is thin.
Sack has so far issued 11 licenses to 11 boats, each with 50 traps. In 2018, Fisheries and Oceans issued licenses to 979 boats in this part of Nova Scotia — the large and lucrative Lobster Fishing Area 34 — and each could hold 375 to 400 traps.
Aaron MacNeil, a biologist at Dalhousie University in Halifax, said the threat the Sipekne’katik moderate livelihood fishery poses to the lobster stock there is “very, very close to zero.”
Commercial fishers also argue that harvesting lobsters during the offseason, when they’re more likely to be molting — shedding their rigid exoskeleton and growing another — harms the stock because the shells that grow back are softer. MacNeil said lobsters are hungrier and more active after molting, making them easier to catch.
“If the fishery was at a larger scale, these sorts of things would become relevant,” he said, “but the scale of what we’re talking about right now? It’s not relevant.”
The federal Department of Fisheries and Oceans also dismisses those claims. Fisheries Minister Bernadette Jordan told federal lawmakers last week that “lobster stocks are healthy.”
It’s no accident that the Sipekne’katik launched the fishery on Sept. 17. The day marked 21 years since the Canadian Supreme Court decision at the heart of the conflict.
Donald Marshall Jr., a Mi’kmaw man, was fishing for eel in Pomquet Harbor, Nova Scotia, in 1993, when he was charged with fishing without a license. He admitted to fishing and selling the eel but said it was his right under a 1760 treaty with the British.
The court agreed: It said Marshall had a constitutional right to fish, hunt and gather to secure “necessaries” or a “moderate livelihood.” But it didn’t define the term, beyond saying it excluded the “open-ended accumulation of wealth.”
A second decision clarified that the government could regulate the right on conservation grounds or for “other compelling and substantial public objectives including economic and regional fairness.” A “closed season” is one tool, it said, but “its application to treaty rights will have to be justified.”
Sack handed out the first lobster tags to Marshall’s son.
From 2000 to 2007, Ottawa negotiated fishing agreements with 32 First Nations and spent $270 million on commercial fishing licenses, gear and training. It estimates that the value of First Nations commercial fishing increased 120 percent from 2007 to 2015, to $110 million.
But it has yet to define “moderate livelihood,” and there’s no agreement with the Sipekne’katik. Sack said they’ll define for themselves what “moderate livelihood” means as a self-governing First Nation. It’s having discussions with the federal government.
Berry wants a seat at that table.
“If the federal government and the First Nations are having a rights-based discussion, that’s one thing,” he said. “But when that starts to wander into a discussion about access into a fishery that we’re involved in, we must be involved. This is our livelihood.”
The outcome could reverberate beyond the local dispute.
“In addition to lobster, there’s other ocean resources and sectors where the moderate-livelihood standard is at play,” said Douglas Sanderson, a law professor at the University of Toronto. “So you can see quickly how it’s not just about how many lobsters can we take during this negotiated lobster season.”
One point on which both sides agree: They want Prime Minister Justin Trudeau’s government to take a greater role in settling the conflict. Trudeau has repeatedly called reconciliation with Indigenous people his top priority, but critics say he hasn’t always matched his words with action.
“The problems in St. Mary’s Bay have been caused in Ottawa,” Colin Sproul, president of the Bay of Fundy Inshore Fishermen’s Association, told a parliamentary committee last week. “Not in our fishing communities in Nova Scotia.”
The Royal Canadian Mounted Police (RCMP) have been accused of standing idly by during some of the violence.
Sack was allegedly shoved at a lobster pound in New Edinburgh; a 46-year-old man has been charged with assault. Sack calls the attacks hate crimes.
“If it was the other way around, there would be all kinds of law enforcement in the area,” he said.
Ottawa sent more officers, and a Nova Scotia judge granted an interim injunction last week to authorize police to arrest anyone trying to stop Mi’kmaq fishers from accessing two wharfs. But some lawmakers had harsh words for the police, who Miller said had “let down” Indigenous people “once again.”
The federal government also appointed a third-party “special representative” to “communicate with and rebuild trust between commercial and Indigenous fishers” and to make recommendations to officials in Ottawa.
Tension over fishing rights have bubbled up in the past, including in the immediate aftermath of the Marshall decision. Then, as now, non-Indigenous fishers said they worried about conservation, Ottawa was faulted for being caught off guard and the RCMP drew criticism for its inaction.
Sanderson said the Mi’kmaq appear to have more support. Hundreds have joined protests in Halifax, and some Canadian restaurants are removing lobster from their menus in solidarity.
“Not serving lobster is a very small sacrifice, but it does represent a consciousness and a side-taking,” Sanderson said. “The idea that anyone who’s not a Mi’kmaq fisher is willing to give up something? That’s new.”
Now Sack is facing a new dilemma: He has 15,000 pounds of lobster that he can’t sell because local businesses have been told by commercial fishers that they’ll be blacklisted if they take it.
“The commercial industry said they were going to take the law into their own hands and they actually went and did so and got away with it,” he said. “It makes you think: What else can people get away with?”